son

*

overthrow the finding of town site trustees appointed under the act of congress, May 14, 1890, and render a decision averse to their award, on the ground of fraud, the petition must clearly and specifically allege the facts constituting the fraud which must be extrinsic or collateral to the matter tried, and not a fraud which was in issue in the contest. Cummings v. McDermid, 4 Okla. 272 (44 Pac. Rep. 276). Applying § 3 of Utah Act, Feb. 17, 1869, providing that within six months after the first publication of the notice required to be given by the corporate authorities of their entry upon town site lands, "every per* * * claiming to be the title owner, or possessor, occupant or occupants, or to be entitled to the occupancy or possession of such land, ** shall file a statement in writing with the probate court of the county, containing a description of the land claimed, and the specific right claimed therein. * That all persons failing to make and deliver such statement within the time limited in this section, shall be forever barred from the right of claiming or recovering such land or any interest or estate therein, or any part, parcel or share thereof in any court of law or equity," it is held that where a wife, to whom lands subject to the land laws of the United States had been conveyed by her husband prior to such statute, the deed giving her a life estate, the property to pass to her son after her death, makes the application provided for by the statute and is adjudged to be the original owner and receives a deed from the proper authorities, she holds the property absolutely and not in trust for her son. Amy v. Amy, Utah (42 Pac. Rep. 1121). Construing and applying Wis. Laws 1856, ch. 95, which makes the county judges trustees of lands conveyed under the federal town site law, and authorizes them to convey to occupants a perfect title to the interest claimed by them in town sites, and to determine conflicting claims, and makes their decision final, it is held that no one who is not a beneficiary of the trust, but a mere stranger to the title, can call in question the validity or regularity of such conveyance, or, by subsequent entry or intrusion upon the premises, put parties claiming under such conveyance to the proof whether all the steps prescribed by law have been taken, or whether the party to whom the deed was executed was the person rightly entitled therero. These

questions can only be litigated by some one interested in the trust, and by direct proceedings for that purpose. Tucker v. Chicago, St. P., M. & O. Ry. Co., 91 Wis. 576 (65 N. W. Rep. 515). Citing, Taylor v. Railroad Co., 45 Minn. 66 (47 N. W. Rep. 453); Murray v. Hobson, 10 Colo. 66 (13 Pac. Rep. 921); Ming v. Foote, 9 Mont. 201 (23 Pac. Rep. 515); Chever v. Horner, 11 Colo. 68 (17 Pac Rep. 495); Cofield v. Mc Clelland, 16 Wall. 331, 334; Smelting Co. v. Kemp, 104 U. S. 640; Moffat v. U. S., 112 U. S. 24 (5 Sup. Ct. Rep. 10).

Sec. 661. Grants to railroads-Miscellaneous notes. Where, for the purpose of aiding the construction of railroads, lands are granted by congress to a state, the grant will be construed as a grant in praesenti conferring a present title; and the title of the beneficiary, after the lands are selected and earned, relates back to the date of the grant. Title to lands embraced in the grant cannot be conferred by the United States, as against the state or its grantees. Paige v. Kolman, 93 Wis. 435 (67 N. W. Rep. 700). An act of congress investing and empowering a railway company with the right of way for locating, constructing, owning, equipping, operating, using and maintaining a railway through and over public land, and providing that said company is authorized to take and use, for all purposes of a railroad, a right of way over said public land, is a present, absolute grant. A homestead settlement subsequent to such an act is subject to the rights of the railway company, although the line of the road was not definitely located until after the entry, and the settler cannot recover for damages necessarily occasioned by the building of a railway under said act. Churchill v. Choctaw Ry. Co., 4 Okla. 462 (46 Pac. Rep. 503); Whaley v. Choctaw Ry. Co., 4 Okla. 470 (46 Pac. Rep. 506). A congressional grant of a right of way to a railway company of a specified width, gives the company the right to the possession of the whole thereof; and such company is using the land when it licenses another to cultivate a portion of it on condition that he keep the right of way clear of combustible materials and maintain lawful fences thereon. Burton v. Laughrey, 18 Mont. 43 (44 Pac. Rep. 406). While a land-grant railroad

company has no vested right in a mere executive withdrawal from entry and settlement of lands within either its " place or "indemnity" limits, yet, so long as the withdrawal continues in force, the lands are not subject to entry and settlement, and no lawful settlement on them can be acquired. Sage v. Swenson, 64 Minn. 517 (67 N. W. Rep. 544). A railroad company pretending to have title to lands under the "Railroad Land Grant" of May 15, 1856, prior to the title of one claiming as a purchaser under the "Swamp Land Grant" of Sept. 28, 1850, which acquiesces in the latter's purchase and improvement of the land for many years is estopped from questioning his title. Bourne v. Ragan, 96 Ia. 566 (65 N. W. Rep. 826). As to the construction and validity of a particular contract of sale of unpatented railroad-grant lands, see Southern Pac. R. Co. v. Allen, 112 Cal. 455 (44 Pac. Rep. 796). Minn. Sp. Laws, 1877, ch. 201; Sp. Laws, 1878, ch. 71, construed and applied, extension of time for the completion of the St. Paul and Pacific Railroad Company's Extension Lines. St. Paul, M. & M. Ry. Co. v. Broulette, 65 Minn, 367 (67 N. W. Rep. 1010). Act Cong. Mar. 3, 1871; Act Cong. July 27, 1866, construed-grants to Southern Pacific Railroad Company and to Atlantic and Pacific Railroad Company-final determination of rights thereundereffect of decision of United States supreme court. Southern Pac. R. Co. v. Painter, 113 Cal. 247 (45 Pac. Rep. 320). For the construction of numerous Texas statutes concerning the grant of lands to railroads, see Quinlan v. Houston & T. C. Ry. Co., 89 Tex. 356 (34 S. W. Rep. 738); Galveston, H. & S. A. Ry. Co. v. State, 89 Tex. 340 (34 S. W. Rep. 746).

Sec. 662. Conflicting grants to railroads-Selection of deficiency. The even-numbered sections within the place limits of the land grant to the Union Pacific Railway Company, Eastern Division, were reserved by act of congress and held for disposal only at double minimum rates. A part of the same was within the indemnity limits of the grant made to the state of Kansas to aid in the construction of the Missouri, Kansas & Texas Railway, but, being already reserved to the United States for a specific purpose, it was not subject

to selection by the latter company to supply deficiencies existing within the place limits of its grant. Until the lands within the indemnity limits were actually selected, and specifically set apart under the direction of the secretary of the interior, for indemnity purposes, the title thereto did not vest in the railway company, but remained in the United States, and subject to its disposal. A selection for indemnity purposes by permission of the commissioner of the general land office, of lands reserved to the United States for another specific purpose is ineffectual, and does not preclude the land department from thereafter devoting the lands to the purposes for which they were reserved. Herington v. Clark, 56 Kan. 644 (44 Pac. Rep. 624).

Sec. 663. Preemption-Homestead. A preempting claimant who voluntarily stipulates the evidence upon which it is adjudged by the commissioner of the general land office and the secretary of the interior that he has not the qualifications of a preemptor, although in an irregular manner, cannot object to such adjudication and have the question retried where there is evidence to sustain the decision. Bishop Iron Co. v. Webber, 66 Minn. 24 (68 N. W. Rep. 95). Lands upon which a homestead filing has been previously made cannot be included in a permit to cut timber on public lands of the United States, granted by the secretary of the interior. In an action by the claimant for damages on account of the cutting of timber on such land under such a license, recovery is limited to the full value of the timber cut. Nelson v. Big

Blackfoot Milling Co., 17 Mont. 553 (44 Pac. Rep. 81). Where H. enters a piece of land under the homestead laws of the United States in 1874, and acquires title by patent under such entry, and resides thereon continuously with his wife, his two sons, and daughter-in-law, until 1885, and his wife then removes to another place in the same county, and the records do not disclose whether such removal was temporary or permanent, the land still remains the homestead of H., and cannot be alienated without the ioint consent of H. and his wife. New England Trust Co. v. Nesh, 5 Kan. App. 739 (46 Pac. Rep. 987). U. S. Rev. Stat., § 2263; Colo. Gen. Stat., ch. 90, construed and applied-assignment of claims on

public lands-state lands. Cooper v. Hunter, 8 Colo. App. 101 (44 Pac. Rep. 944).

Sec. 664. Preemptor's possession not adverse. preemptor's possession of lands which were never offered for sale by the general government is not adverse to one to whom it makes a grant of the land. Doe v. Beck, 108 Ala. 71 (19 So. Rep. 802). The court say: "A preemptor is one who, by settlement upon and improvement of public land, acquires the right to purchase the particular land to the extent of 160 acres in preference to others by paying the minimum price thereof, provided it is or when it becomes open to sale. By. their preemption laws the United States do not enter into any contract with the settler or incur any obligation that the land occupied by him shall ever be put up for sale.' Rev. Stat. U. S., § 2259; 19 Am. & Eng. Enc. Law, p. 313; Hutchings v. Low, 15 Wall, 77. The settler's right is valid, in the sense of being enforceable when the conditions of its existence are fulfilled; and creates an equity in his favor, whereby he may buy in preference to others and pay less than others; but this is the extent of it. He has no title to the land until he has bought and paid for it; and holding possession solely, as he must if he claims only as a pre-emptor, under this preferential right to acquire the title by purchase upon terms more favorable to him than to others, his possession is of necessity in subordination to and recognition of the title he thus desires and intends to acquire at some future time, or when the land is put up for sale. And where the land as here was never put up for sale by the government, but instead was granted to a state for purposes of internal improvements, and after such grant the would be preemptor continues in possession, claiming, not title, but a mere right to purchase, though in point of fact and law no such right could ever accrue to him after the government grant, such possession would likewise be in recognition of the outstanding title and not adverse to such grantee, or those claiming title through it."

Sec. 665. Mortgage of homestead lands-Liability for debts. Where a person having a homestead right to a quarter section of land under the homestead laws of the